U.S. v. Zapata
| Decision Date | 28 April 1998 |
| Docket Number | No. 97-6270,97-6270 |
| Citation | 139 F.3d 1355 |
| Parties | 49 Fed. R. Evid. Serv. 319, 11 Fla. L. Weekly Fed. C 1271 UNITED STATES of America, Plaintiff-Appellee, v. Abel ZAPATA, Luis Ocampo, Defendants-Appellants. Non-Argument Calendar. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Susan G. James, Montgomery, AL, for Zapata.
William Blanchard, Montgomery, AL, for Ocampo.
Redding Pitt, U.S. Atty., Artur G. Davis, Asst. U.S. Atty., Montgomery, AL, for Plaintiff-Appellee.
Appeals from the United States District Court for the Middle District of Alabama.
Before HATCHETT, Chief Judge, BARKETT, Circuit Judge, and CLARK, Senior Circuit Judge.
Abel Zapata and Luis Ocampo appeal their convictions and sentences for conspiracy to distribute and possess with intent to distribute marijuana, and distribution of marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 846.
On appeal, Zapata and Ocampo contend that their convictions and sentences should be reversed because the admission of extrinsic-offense evidence under Federal Rules of Evidence 404(b) violated their rights to a fair trial and the district court erroneously "rounded-up" the conversion of drug quantity to set the base offense level.
A trial court has broad discretion in determining the admissibility of evidence; its ruling will not be disturbed on appeal absent an abuse of discretion. United States v. Hicks, 798 F.2d 446, 451 (11th Cir.1986), cert. denied, 479 U.S. 1035, 107 S.Ct. 886, 93 L.Ed.2d 839 (1987). This court reviews the district court's drug-quantity determination for clear error. United States v. Jackson, 115 F.3d 843, 845 (11th Cir.1997). However, if a party fails to raise objections to an issue before the district court, this court should review this issue only for plain error. See United States v. Chisholm, 73 F.3d 304, 307 (11th Cir.1996). This Court reviews de novo the district court's interpretation and application of the guidelines to the facts. United States v. Barakat, 130 F.3d 1448, 1452 (11th Cir.1997).
Upon review of the trial and sentencing transcripts and the presentence investigation report, and upon consideration of the arguments of the parties, we find no reversible error as to admission of extrinsic-offense evidence under Fed.R.Evid. 404(b) with regard to both defendants. However, we find reversible error as to the district court's "rounding-up" drug-quantity conversions.
Federal Rule of Evidence 404(b) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused the prosecution in a criminal case shall provide reasonable notice in advance of trial, ... of the general nature of any such evidence it intends to introduce at trial.
The principles governing "other crimes" evidence is the same whether the conduct occurs before or after the offenses charged. United States v. Delgado, 56 F.3d 1357, 1365 (11th Cir.1995), cert. denied, 516 U.S. 1049, 116 S.Ct. 713, 133 L.Ed.2d 667 (1996). The "other crimes" evidence is evaluated under a three-part test: (1) the evidence must be relevant to an issue other than the defendant's character; (2) the act must be established by sufficient proof to permit a jury finding that the defendant committed the extrinsic act; and (3) the probative value of the evidence must not be substantially outweighed by its undue prejudice, and the evidence must meet the requirements of Rule 403. United States v. Miller, 959 F.2d 1535, 1538 (11th Cir.) (en banc), cert. denied, 506 U.S. 942, 113 S.Ct. 382, 121 L.Ed.2d 292 (1992).
A defendant who enters a not guilty plea makes intent a material issue which imposes a substantial burden on the government to prove intent, which it may prove by qualifying Rule 404(b) evidence absent affirmative steps by the defendant to remove intent as an issue. Delgado, 56 F.3d at 1365. The relevance of other crimes evidence to intent is determined by comparing the defendant's state of mind in committing both the extrinsic and charged offenses. Id. Where the state of mind required for both offenses is the same, the extrinsic crime is relevant to the charged offense. Id. As to the second prong of the three-part test, other crimes evidence has a relatively high incremental value and is not easily excludable where the government does not have overwhelming evidence of the defendant's predisposition to commit the crime or of knowledge of such matters. United States v. Richardson, 764 F.2d 1514, 1523 (11th Cir.), cert. denied sub. nom Crespo-Diaz v. United States, 474 U.S. 952, 106 S.Ct. 320, 88 L.Ed.2d 303 (1985). Extrinsic evidence which is "very similar" to the charged offense as to their "overall purposes" may be highly probative. Delgado, 56 F.3d at 1366. Although the period of time separating the extrinsic conviction and the charged offense may lessen the probative value of the extrinsic evidence, this court has held that a subsequent conviction fifteen months after the charged offense was properly admitted. United States v. Terebecki, 692 F.2d 1345, 1349 (11th Cir.1982).
The extrinsic evidence introduced against Zapata and Ocampo was documents showing their convictions, and thus satisfying the second prong of the three-part test. Both Zapata and Ocampo pled not guilty, making intent a material issue. Neither of their attorneys took affirmative steps before the trial to indicate that the government would be relieved of proving intent. Their convictions involved the same state of mind at issue in the charged offenses. Therefore, the other crimes evidence was plainly relevant to the issue of intent, and the first prong is met. As to the third prong, the government did not have overwhelming evidence of either Zapata's or Ocampo's intent to conspire and to distribute marijuana because all parties and the court agreed that the testimony of Castillo and Ovido was not credible. Without that testimony, the government could only rely on the testimony of Norma Castillo and the testimony of Agents James Duff and Maurine Murphy. Norma Castillo testified that she saw Zapata come to her house to visit her husband, Rolando Castillo, and she...
To continue reading
Request your trial
-
United States v. Ruan, No. 17-12653
...to a defendant ... [but] cannot be based on calculations of drug quantities that are merely speculative." United States v. Zapata , 139 F.3d 1355, 1359 (11th Cir. 1998) (per curiam).The drug guideline, § 2D1.1(a)(1), calculates a base offense level based on the total "marihuana equivalent" ......
-
U.S. v. Shotts
...341 (1992). This court reviews de novo the district court's interpretation and application of the guidelines. United States v. Zapata, 139 F.3d 1355, 1357 (11th Cir.1998). The obstruction of justice counts had an adjusted offense level of 14. With a criminal history category I, the guidelin......
-
U.S. v. Marsh, 3:06cr61/MCR.
...on "fair, accurate and conservative estimates of the quantity of drugs attributable to a defendant." Id. (quoting United States v. Zapata, 139 F.3d 1355, 1359 (11th Cir.1998)). Defendant's suggestion that the only drugs for which she could be held accountable must have been "in her possessi......
-
U.S. v. Edouard, 05-15808.
...prove by qualifying Rule 404(b) evidence absent affirmative steps by the defendant to remove intent as an issue." United States v. Zapata, 139 F.3d 1355, 1358 (11th Cir.1998). "Where the extrinsic offense is offered to prove intent, its relevance is determined by comparing the defendant's s......